FIRST DIVISION

[ G.R. No. 216062, September 19, 2018 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, V. HILARIO

NEPOMUCENO Y VISAYA @ "BOK", ACCUSED-APPELLANT.

DECISION

BERSAMIN, J.:

This appeal seeks the review and reversal of the decision promulgated on May 16,
2014,[1] whereby the Court of Appeals (CA) upheld the conviction of the accused-
appellant handed down by the Regional Trial Court (RTC) in Manila in Criminal Case No.
08-259713 and Criminal Case No. 08-259714, respectively, for the violation of Section
5, Article II, Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002) and
the violation of Section 11(3) of the same law through the judgment dated May 3,
2012.[2]

The RTC imposed life imprisonment and a fine of P500,000.00 for the violation of
Section 5, and the indeterminate sentence of 12 years and one day, as minimum, to 15
years, as maximum, and fine of P300,000.00 for the violation of Section 11(3).[3]

Antecedents

The Office of the City Prosecutor of Manila filed against the accused-appellant the
following informations dated February 28, 2008, to wit:

Criminal Case No. 08-259713

That on or about February 21, 2008, in the City of Manila, Philippines, the
said accused, not being authorized by law to sell, trade, deliver, or give away
to another any dangerous drug, did then and there willfully, unlawfully and
knowingly sell one (1) heat-sealed transparent plastic sachet with net weight
of ZERO POINT ZERO TWO ZERO gram (0.020g), known as "SHABU"
containing methylamphetamine hydrochloride, a dangerous drug.

CONTRARY TO LAW.

Criminal Case No. 08-259714

That on or about February 21, 2008, in the City of Manila, Philippines, the
said accused, without being authorized by law to possess any dangerous
drug, did then and there wilfully, unlawfully and knowingly have in his
possession and under his custody and control white crystalline substance
contained in one (1) heat-sealed transparent plastic sachet with net weight
 of ZERO POINT ZERO TWO THREE gram (0.023g), known as 'SHABU" containing
methylamphetamine hydrochloride, a dangerous drug.

CONTRARY TO LAW.

The CA summarized the factual and the procedural antecedents in its assailed decision,
viz.:

The Prosecution's version is synthesized by the Office of the Solicitor

General as follows:

On February 20, 2008, confidential informant reported to Police Inspector

John Guiagi, head of Station Anti-Illegal Drugs (SAID) in Police Station 3,
and informed him that an alias "Bok" was selling drugs in Felix Huertas St.,
Sta. Cruz, Manila. He instructed PO2 Boy Nino Baladjay and PO2 David
Gonzales to take the confidential informant with them and conduct
surveillance on the target. After confirming the information, Gonzales
prepared a pre-operation report and a coordination form with the PDEA to
conduct buy-bust operation on the next day.

On February 21, 2008, Guiagi briefed Baladjay, SPO3 Morales and PO1
Cabocan on the conduct of the buy-bust operation. Baladjay prepared three
(3) marked one hundred pesos (Php100.00) bills and he was designated as
poseur buyer. They left the police station around 3:30 p.m. and proceeded
to Felix Huertas St., near Fabella Hospital. Upon arrival, the confidential
informant pointed to appellant and together with Baladjay, they approached
the target. Baladjay was introduced to appellant by informant (sic) as a
buyer. Appellant asked Baladjay, "magkano?" to which he replied three
hundred pesos (Php300.00). Appellant then pulled from his pocket two (2) small
plastic sachets containing white crystalline substance and asked Baladjay
to pick one. After Baladjay picked one (1) sachet, he gave the three
hundred pesos (Php300.00) to appellant and executed the pre- arranged
signal. Baladjay then introduced himself as a police officer and arrested
appellant. Baladjay recovered the other sachet and the marked money.
Several persons tried to prevent the arrest hence they had to first bring
appellant to the police station before marking the sachets and the money.

Subsequent laboratory examination of the sachets' contents confirmed it

was methylamphetamine hydrochloride, otherwise known as shabu.

In his Brief, Appellant's version of the facts is as follows:

On February 21, 2008, at around 4:00 o'clock in the afternoon, Bok

(Appellant) was on his way, coming from his work as a welder, when two (2)
men riding in tandem on a motorcycle pulled over and asked him "where is
the house of Hilario?" Bok replied that it was he, and was asking them
"why," when he suddenly noticed five (5) other men, three (3) of which were
in civilian clothing while the other two (2) were in police uniform, on board a
car. The men on the motorcycle informed Bok that they wanted to invite him
to the police station to ask him some question (sic). Tired and with hurting
 eyes, Bok told the policemen to ask him on the spot, but it fell on deaf ears.
Curious, Bok decided to just go with them.

At the police station, Bok was surprised when he was suddenly detained
inside the cell. Bok repeatedly asked the policemen the reason for his
detention, but no one answered. Bok later found out that he was being
charged for being a pusher when no illegal drug was ever found or recovered
from him.[4]

Judgment of the RTC

As stated, the RTC convicted the accused-appellant of the crimes charged upon finding
that the Prosecution had sufficiently and credibly proved all the elements of illegal sale
and illegal possession of dangerous drugs, or shabu. It held that the arresting officers
were entitled to the presumption of the regularity of the performance of their functions,
which justified declaring them to have complied with the procedures prescribed by law
for the preservation of the integrity of the confiscated evidence. The RTC disposed
thusly:

WHEREFORE, in view of the foregoing, judgment is hereby rendered finding

accused HILARIO NEPOMUCENO y VISAYA @ Bok GUILTY beyond
reasonable doubt:

1. In CRIM. CASE NO. 08-259713, of the crime of Violation of Sec. 5,

Article II, Republic Act 9165, and is hereby sentenced to suffer Life
Imprisonment and to pay fine in the amount of P500,000.00; and

2. In CRIM. CASE NO. 08-25714, of the crime of Violation of Sec. 11

(3), Article II, Republic Act 9165, and is hereby sentenced to suffer
imprisonment of Twelve (12) years and one (1) day, as minimum,
to Fifteen (15) years, as maximum, and to pay fine in the amount of
P300,000.00.

Cost against the accused.

SO ORDERED.[5]

Decision of the CA

On appeal, the CA affirmed the convictions, observing that the Prosecution had
established that the police officers were able to preserve the integrity of the confiscated
dangerous drugs despite the non-compliance with the procedural requirements stated
in Section 21 of R.A. No. 9165; and that the chain of custody of the dangerous drugs in
question was further shown to have been unbroken. The fallo reads:

WHEREFORE, the instant appeal is DISMISSED. The Decision dated 3 May

2012 of the Regional Trial Court of Manila, Branch 53, in Criminal Case Nos.
08-259713 and 08-259714 is hereby AFFIRMED.

SO ORDERED.[6]
 Issues

In this appeal, the Office of the Solicitor General (OSG) as counsel of the Prosecution[7]
and the Public Attorney's Office (PAO) as counsel of the accused-appellant,[8]
separately manifested that for purposes of this appeal they were no longer filing
supplemental briefs, and adopted their respective briefs submitted to the CA.

Accordingly, the accused-appellant continues to argue that he was entitled to acquittal

because of the non-compliance by the apprehending officers with the procedural
requirements stated in Section 21 of R.A. No. 9165; that the Prosecution did not justify
the non-compliance by the apprehending officers with the post-arrest requirements of
Section 21 of R.A. No. 9165; and that such non-compliance was sufficient reason to
doubt the integrity of the confiscated dangerous drugs as the substances seized from
him.

In response, the OSG submits that the mere non-compliance with the procedural post-
operation requirements of Section 21 of R.A. No. 9165 did not engender doubts as to
the integrity of the confiscated dangerous drugs considering that, as the RTC correctly
found, the integrity of the seized drugs as evidence of the corpus delicti had been
preserved.

Ruling of the Court

The appeal is meritorious.

The State bears the burden of proving the elements of the illegal sale of dangerous
drugs in violation of Section 5 of R.A. No. 9165 and of the illegal possession of
dangerous drugs in violation of Section 11 of the same law. To discharge its burden of
proof, the State should establish the corpus delicti, or the body of the crime itself.
Corpus delicti is defined as the body or substance of the crime and, in its primary
sense, refers to the fact that a crime was actually committed. As applied to a particular
offense, the term means the actual commission by someone of the particular crime
charged. The corpus delicti is a compound fact made up of two elements, namely: the
existence of a certain act or result forming the basis of the criminal charge, and the
existence of a criminal agency as the cause of the act or result. Consequently, the State
does not comply with the indispensable requirement of proving the corpus delicti if the
subject drugs are missing, or if substantial gaps occur in the chain of custody of the
seized drugs as to raise doubts about the authenticity of the evidence presented in the
trial court.[9]

In fine, the dangerous drug is itself the corpus delicti. The only way by which the State
could lay the foundation of the corpus delicti is to establish beyond reasonable doubt
the illegal sale or illegal possession of the dangerous drug by preserving the identity of
the drug offered as evidence against the accused. The State does so only by ensuring
that the drug presented in the trial court was the same substance bought from the
accused during the buy-bust operation or recovered from his possession at the moment
of arrest.[10] The State must see to it that the custody of the seized drug subject of the
illegal sale or of the illegal possession was safeguarded from the moment of
confiscation until the moment of presentation in court by documenting the stages of
such custody as to establish the chain of custody, whose objective is to remove
unnecessary doubts about the identity of the incriminating evidence.[11]

Section 21 of R.A. No. 9165,[12] as amended, sets specific procedures in the handling
of the confiscated substance, thusly:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or

Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment. – The PDEA shall take charge and have
custody of all dangerous drugs, plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well as instruments/paraphernalia
and/or laboratory equipment so confiscated, seized and/or surrendered, for
proper disposition in the following manner:

(1) The apprehending team having initial custody and

control of the dangerous drugs, controlled precursors and
essential chemicals, instruments/paraphernalia and/or
laboratory equipment shall, immediately after seizure and
confiscation, conduct a physical inventory of the seized
items and photograph the same in the presence of the
accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or
counsel, with an elected public official and a
representative of the National Prosecution Service or the
media who shall be required to sign the copies of the
inventory and be given a copy thereof: Provided, That the
physical inventory and photograph shall be conducted at
the place where the search warrant is served; or at the
nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in
case of warrantless seizures: Provided, finally, That
noncompliance of these requirements under justifiable grounds,
as long as the integrity and the evidentiary value of the seized
items are properly preserved by the apprehending officer/team,
shall not render void and invalid such seizures and custody over
said items;

xxxx

The Implementing Rules and Regulation of Section 21 (a) of RA 9165, as amended,

(IRR) echoes the foregoing requirements, thus:

xxxx

(a) The apprehending office/team having initial custody and control of the
drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused
or the person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, a representative from
 the media and the Department of Justice (DOJ), and any elected
public official who shall be required to sign the copies of the
inventory and be given a copy thereof: Provided, that the physical
inventory and photograph shall be conducted at the place where the
search warrant is served; or at the nearest police station or at the
nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures; Provided, further that non-
compliance with these requirements under justifiable grounds, as long as
the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void and
invalid such seizures of and custody over said items; x x x

Strict compliance with the prescribed procedure is necessary because the illegal drug
has the unique characteristic of becoming indistinct and not readily identifiable, thereby
generating the possibility of tampering, alteration or substitution by accident or
otherwise. The rules governing the observance of the measures safeguarding the
conduct and process of the seizure, custody and transfer of the drug for the laboratory
examination and until its presentation in court must have to be strictly adhered to.[13]

The preservation of the corpus delicti is primordial to the success of the criminal
prosecution for illegal possession and illegal sale of the dangerous drug. Consequently,
we cannot accord weight to the OSG's insistence that the mere non-compliance by the
arresting officers with the procedures, without any proof of actual tampering, alteration
or substitution, did not jeopardize the integrity of the confiscated drug for being
contrary to the letter and intent of the law. We deem it worthy to reiterate that the
safeguards put in place by the law precisely to prevent and eliminate the possibility of
tampering, alteration or substitution as well as to ensure that the substance presented
in court was itself the drug confiscated at the time of the apprehension are not to be
easily dismissed or ignored.

The accused could not be protected from tampering, alteration or substitution of the
incriminatory evidence unless the Prosecution established that the arresting or seizing
officer complied with the requirements set by Section 21 of R.A. No. 9165. Yet, the
records herein reveal that the police officers did not mark the confiscated drugs at the
place of the arrest but only upon their arrival at the police station; and did not conduct
the physical inventory of the confiscated drug and did not take pictures thereof as
required by Section 21.

The last sentence of paragraph (a) of Section 21 excuses lapses in the arresting
officer's compliance with the requirements only if a justifiable reason is advanced for
the lapses. Here, although the failure to mark the confiscated substances upon arrest of
the accused could be excusable in light of the testimony of PO2 Baladjay that a
neighbor of the accused had started a commotion during the arrest proceedings that
rendered the immediate marking in that place impractical, the non-compliance with the
requirements for the physical inventory and for photographing of the confiscated drug
being taken "in the presence of the accused or the person/s from whom such items
were confiscated and/or seized, or his/her representative or counsel, a representative
from the media and the Department of Justice (DOJ), and any elected public official
who shall be required to sign the copies of the inventory and be given a copy thereof"
was not explained at all by the arresting officers.

In People v. Pagaduan,[14] we emphasized the importance of the inventory and

compliance with the other procedural requirements to safeguard the integrity of the
confiscated drug and the failure to provide a justification to non-compliance of the
requirements, and expounded on the consequence of the non-compliance being an
acquittal, viz.:

In several cases, we have emphasized the importance of compliance with

the prescribed procedure in the custody and disposition of the seized drugs.
We have repeatedly declared that the deviation from the standard procedure
dismally compromises the integrity of the evidence. In People v. Morales, we
acquitted the accused for failure of the buy-bust team to photograph and
inventory the seized items, without giving any justifiable ground for the non-
observance of the required procedures. People v. Garcia likewise resulted in
an acquittal because no physical inventory was ever made, and no
photograph of the seized items was taken under the circumstances required
by R.A. No. 9165 and its implementing rules. In Bondad, Jr. v. People, we
also acquitted the accused for the failure of the police to conduct an
inventory and to photograph the seized items, without justifiable grounds.

We had the same rulings in People v. Gutierrez, People v. Denoman, People

v. Partoza, People v. Robles, and People v. dela Cruz, where we emphasized
the importance of complying with the required mandatory procedures under
Section 21 of R.A. No. 9165.

We recognize that the strict compliance with the requirements of Section 21

of R.A. No. 9165 may not always be possible under field conditions; the
police operates under varied conditions, and cannot at all times attend to all
the niceties of the procedures in the handling of confiscated evidence. For
this reason, the last sentence of the implementing rules provides that "non-
compliance with these requirements under justifiable grounds, as long as
the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void and
invalid such seizures of and custody over said items[.]" Thus, noncompliance
with the strict directive of Section 21 of R.A. No. 9165 is not necessarily
fatal to the prosecution's case; police procedures in the handling of
confiscated evidence may still have some lapses, as in the present case.
These lapses, however, must be recognized and explained in terms
of their justifiable grounds, and the integrity and evidentiary value
of the evidence seized must be shown to have been preserved.

In the present case, the prosecution did not bother to offer any explanation
to justify the failure of the police to conduct the required physical inventory
and photograph of the seized drugs. The apprehending team failed to show
why an inventory and photograph of the seized evidence had not been made
either in the place of seizure and arrest or at the nearest police station (as
required by the Implementing Rules in case of warrantless arrests). We
emphasize that for the saving clause to apply, it is important that
 the prosecution explain the reasons behind the procedural lapses,
and that the integrity and value of the seized evidence had been
preserved. In other words, the justifiable ground for noncompliance
must be proven as a fact. The court cannot presume what these
grounds are or that they even exist."

Underscoring the lapses committed by the police operatives in handling the confiscated
drug involved herein is the following excerpt of testimony, to wit:

Q: By the way, was there any photograph taken from [sic] the accused and
the specimen recovered?

A: None, sir.

Q: Why there was [sic] no photograph taken during that time?

A: There was no camera available, sir.

Q: How about an inventory, was there any inventory made by your office
with respect to the item you recovered from the accused?

A: None, it was a Spot Report, sir.

Q: Who prepared that Spot Report?

A: SPO2 Gonzales, sir.[15]

Although the foregoing excerpt seemingly indicated that the arresting officers were
thereby attempting to explain their lapses, particularly the failure to take photographs
of the confiscated drug as directed in the law, the supposed unavailability of a camera
was obviously improbable simply because almost every person at that time carried a mobile
phone with a camera feature. Even more obvious is the fact that the arrest resulted
from a buy-bust operation in relation to the conduct of which the police officers had more
than sufficient time to anticipate the need for the camera. Also, the preparation of
the spot report did not replace the conduct of the actual inventory that R.A. No. 9165
and its IRR specifically required. The inventory and the spot report were entirely distinct
and different from each other. The latter referred to an immediate initial investigative
or incident narrative on the commission of the crime (or occurrence of natural or man-
made disaster or unusual incidents involving loss of lives and damage to properties), and
was addressed to higher officers;[16] it was an internal report on the arrest incident
prepared without the participation of other persons like the accused, representatives of
the media, the DOJ and a public official to witness the preparation of the inventory and
to sign the inventory. In contrast, the inventory indicated the drugs and related material
seized or recovered from the suspect, and should bear the signatures of the relevant
persons that would insulate the process of incrimination from suspicion. Another distinction
related to the requirement to furnish the suspect a copy of the inventory, which did not
apply to the spot report.

The Court cannot condone the lapses or be blind to them because the requirements
that were not complied with were crucial in the process of successfully incriminating the
accused. The deliberate taking of the identifying steps ensured by the requirements
was precisely aimed at obviating switching, "planting" or contamination of the evidence.[17]
Verily, the arresting officers' failure to plausibly explain their lapses left in grave doubt the
very identity of the corpus delicti, an important step in proving the offenses charged. For
one, the lapses – being irregularities on the part of the arresting lawmen – quickly
disauthorized the trial court from presuming the regularity in the performance of their
official duties by the arresting officers.

The Court accepts that "while the chain of custody should ideally be perfect, in reality it
is not, 'as it is almost always impossible to obtain an unbroken chain."'[18] This
limitation on the chain of custody is well recognized in the IRR, which states that non-
compliance with the requirements under justifiable grounds shall not render void and invalid
such seizures of and custody over said item as long as the integrity and evidentiary
value of the seized item are properly preserved by the apprehending officer/team. In
deciding drug-related offenses, therefore, the courts should deem to be essential "the
preservation of the integrity and the evidentiary value of the seized items, as the
same would be utilized in the determination of the guilt or innocence of the accused."[19]

For failure of the Prosecution to prove the guilt of the accused-appellant beyond
reasonable doubt, he is entitled to acquittal. His personal liberty could not be validly
jeopardized unless the proof marshalled against him satisfied that degree of moral
certainty that should produce in the unprejudiced mind of the neutral judge a
conviction that the accused was guilty in doing the act with which he was charged of having
committed contrary to law.

WHEREFORE, the Court REVERSES and SETS ASIDE the decision promulgated on
May 16, 2014 in CA-G.R. CR-HC No. 05663; ACQUITS accused-appellant HILARIO
NEPOMUCENO y VISAYA for failure of the Prosecution to prove his guilt for the
crimes charged beyond reasonable doubt; and ORDERS his IMMEDIATE RELEASE
from confinement unless there are other lawful causes for his confinement.

Let a copy of this decision be sent to the Director of the Bureau of Corrections in
Muntinlupa City for immediate implementation. The Director of the Bureau of
Corrections shall report the action taken to this Court within five (5) days from receipt
of this decision.

SO ORDERED.

Leonardo-De Castro, C.J., (Chairperson), Del Castillo, Tijam, and J. Reyes, Jr.,[*] JJ.,
concur.

[*] Vice Associate Justice Francis H. Jardeleza, who inhibited due to his prior
participation as the Solicitor General, per the raffle of September 12, 2018.

[1] Rollo, pp. 2-10; penned by Associate Justice Jane Aurora C. Lantion, and concurred

in by Associate Justice Vicente S.E. Veloso and Associate Justice Myra V. Garcia- Fernandez.
[2] Records, pp. 62-65; penned by Presiding Judge Reynaldo A. Alhambra.

[3] Id.

[4] Rollo, pp. 4-5.

[5] CA rollo, p. 65.

[6] Rollo, p. 10.

[7] Id. at 18-19.

[8] Id. at 25-26.

[9] People v. Bautista, G.R. No. 177320, February 22, 2012, 666 SCRA 518, 531-532.

[10] People v. Pagaduan, G.R. No. 179029, August 9, 2010, 627 SCRA 308, 317-318.

[11] See Mallillin v. People, G.R. No. 172953, April 30, 2008, 553 SCRA 619.

[12] See Republic Act No. 10640.

[13] People v. Kamad, G.R. No. G.R. No. 174198, January 19, 2010, 610 SCRA 295,

304-305.

[14] Supra, note 10, at 320-322.

[15] TSN, dated March 2, 2010, p. 21.

[16] The Philippine National Police Manual, PNPM-DIDM-DS-9-1. The Criminal

Investigation Manual (Revised) 2011. Accessed at
http://www.pnp.gov.ph/images/Manuals_and_Guides/DIDM/Criminal-Investigation-
Manual.pdf last January 24, 2018.

[17] People v. Coreche, G.R. No. 182528, August 14, 2009, 596 SCRA 350, 357.

[18] People v. Mendoza, G.R. No. 189327, February 29, 2012, 667 SCRA 357, 368.

[19] People v. Torres, G.R. No. 191730, June 5, 2013, 697 SCRA 452, 466.

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